Canadian Supreme Court overturns prohibition on euthanasia

Carter v. Canada (Attorney General), 2015 SCC 5, [2015]

The Canadian Supreme Court has unanimously overturned the prohibition on assisted suicide and voluntary euthanasia contained in the Canadian Criminal Code. The Court found that the Code provisions infringe on the rights to life, liberty and security of the person, rights which are protected by the Canadian Charter of Rights and Freedoms

Subject to legislative reform, Canadian adults who are mentally competent and able to provide consent to the termination of their life, may now have a physician assisted death facilitated if their medical condition is grievous and irremediable so as to cause endurable and intolerable suffering. 

Facts

In 2009, Gloria Taylor (the plaintiff) was diagnosed with a fatal neurodegenerative disease that causes progressive muscle degeneration. The disease had caused her to lose the use of her hands and feet, and she would become unable to walk, chew, swallow, speak and eventually, breathe. She sought a physician-assisted death, an indictable offence in Canada under the Code. The criminalisation of assisted suicide and voluntary euthanasia by the Code meant that she would have to either commit suicide while she was still physically capable of doing so, or suffer a long and debilitating death.

Ms Taylor issued proceedings against the state in the Supreme Court of British Columbia challenging the constitutional validity of the provisions of the Code which prohibit a person from consenting to death, and make aiding or abetting a person in the commission of suicide an indictable offence ("the prohibitions"). The challenge was brought on the basis that the prohibitions were invalid because they infringed upon the rights to life, liberty, equality and security of the person which are protected by the Charter.

Ms Taylor was joined in her claim by a physician, the British Columbian Civil Liberties Association and two individuals who aided her mother's legally assisted suicide in Switzerland.

At first instance, the trial judge held that the prohibitions were unconstitutional because they violated the rights protected by the Charter, by restricting a person's liberty and control over their bodily integrity. The trial judge also considered that the prohibitions imposed a disproportionate burden on people with physical disabilities which violated the right to equality. The trial judge was satisfied that there were sufficient measures to safeguard against misuse, including informed consent procedures and reliance on physicians to assess a patient's competence in assisted suicide decision-making.

The state appealed to the British Columbian Court of Appeal on the grounds that the trial judge was bound to follow the previous decision in Rodriguez v British Columbia (Attorney General) [1993] 3 S.C.R. 519 (Rodriguez), which cast a blanket prohibition on assisted suicide. The Court of Appeal overturned the trial judge's decision, held that Rodriguez should be followed, and as such determined that the prohibitions did not infringe the rights protected by the Charter.

Ms Taylor then appealed to the Supreme Court of Canada. The issues for determination were whether the prohibition on physician-assisted death in the Code violated the human rights protected by the Charter, and whether the decision of Rodriguez that confirmed the constitutional validity of the prohibitions ought to be overturned.

Decision

On 6 February 2015, the Supreme Court of Canada held that the assisted suicide and voluntary euthanasia prohibitions contained in the Code were void on the basis that the prohibitions infringed on Ms Taylor's rights to life, liberty and security of the person, rights which are protected by section 7 of the Charter. They found that the prohibitions may force a person to take their life prematurely out of fear that they may be incapable of doing so when they reach a point where their suffering becomes intolerable. The Court also emphasised the importance of individual autonomy and dignity in response to a grievous and irremediable medical condition which encroaches on a person's liberty and security of the person.

In making its decision, the Court also considered, as required by section 1 of Charter, whether absolute prohibition was the minimal impairment to Ms Taylor’s rights to life, liberty and security of the person. It found that it was not.

Having found that the prohibitions infringed Ms Taylor's right to life, liberty and security of the person, the Court considered it was unnecessary to determine whether the prohibitions also infringed the right to equality without discrimination which is guaranteed by section 15 of the Charter. The Court also distinguished the decision of Rodriguez.

The Court stated that the prohibitions resulted in people who were grievously and irremediably ill having only two options, “to take their own life prematurely, often by violent or dangerous means … or suffer until [they] die from natural causes' stating that, '[that] choice is cruel”.

At the heart of its decision, the Court emphasised the balancing act between the autonomy and dignity of a competent adult who seeks death in response to a grave medical condition, and that of the sanctity of life and the need to protect those who are vulnerable. However, it considered that a strict regulatory regime was capable of protecting the vulnerable from abuse or error. The right of a competent adult to determine their own fate therefore outweighed the risks associated with assisted-suicide and voluntary euthanasia.

The Court declared that the prohibitions were invalid, but suspended the operation of its declaration for 12 months. In contrast to the Court of Appeal, the Supreme Court decided that the legislature must be provided with an opportunity to draft appropriate legislation and regulatory regimes to govern physician assisted suicides.

Commentary

Assisted suicide has been a hotly contested political issue in Canada and Australia since the early 1990s. Despite much debate, assisted suicide remains criminalised in Australia. Besides Canada, assisted suicide and/or euthanasia is legal in the Netherlands, Luxembourg, Belgium, Colombia, Germany, Japan, Albania and Switzerland, with more restricted forms available to mentally competent and terminally ill adults in the United States in Oregon, Montana, Washington and Vermont.

Whilst the Canadian government is yet to amend the Code to reflect the Court's decision, it will be important to note how the legislature drafts the provisions to allow for physician-assisted death. The international community will also be watching how Canada implements safeguards and regulatory regimes to protect vulnerable individuals from abuse or error.

This decision will inform how other countries consider the criminalisation of euthanasia and physician assisted suicide. However, in Canada it is now clear that the legislature must define the scope of physician assisted suicides and ensure that the appropriate balance is struck between allowing individual autonomy in medical decision-making and protecting vulnerable individuals.

The full decision can be found online here: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14637/index.do

Jane Coventry is a Solicitor, and Kelsey Ippolito a Graduate, at DLA Piper.